RATTIGAN -v- DPP
SUPREME COURT
Judgment was given by Mr Justice Hugh Geoghegan on May 7th, 2008, Chief Justice Mr Justice John Murray and Mr Justice Adrian Hardiman concurring.
JUDGMENT
Although there was blameworthy prosecutorial delay in bringing Brian Rattigan to trial for murder, the delay did not affect the planned trial to an extent as to justify prohibiting it. Prejudicial media coverage also did not affect the prospect of a fair trial to the extent as to justify prohibiting the trial.
BACKGROUND
The case was an appeal from a judgment of Mr Justice Kevin OHiggins in the High Court who had refused to grant an injunction against the DPP preventing him from proceeding with the prosecution of Brian Rattigan for the murder of Declan Gavin in August 2001. The grounds for seeking the injunction were those of prosecutorial delay in bringing the prosecution, and media coverage of the murder and the alleged involvement in it of the accused, held by his lawyers to prejudice his chance of receiving a fair trial.
The media coverage took place both before the original High Court hearing and ruling, and between it and the Supreme Court hearing, so the more recent articles were also taken into account.
The incident at the centre of the proposed trial took place in the early hours of August 25th, 2001, when Declan Gavin was fatally stabbed at the entrance of a fast food outlet in Crumlin, Dublin. There was evidence that the assailant, wearing a balaclava, emerged from a car and stabbed the victim, who fled into the fast food outlet. The assailant tried unsuccessfully to follow him.
He left a fingerprint on the window of the shop in the blood of the victim, and there was evidence that this was the fingerprint of Brian Rattigan. Questioned in connection with the attack, he told gardaí he was at his brother's birthday party at the time. He was arrested on suspicion of the murder on September 4th, 2001, released, and arrested again on November 22nd. On March 14th, 2002 the gardaí sent a file to the Chief Prosecution Solicitor, which was forwarded to the DPP on the 21st of that month. On February 4th, 2003 Rattigans brother, who was a potential witness, was killed.
In September of that year, 18 months after receiving the file, the DPP directed that Brian Rattigan be charged with the murder. He was arrested and charged, and remanded in custody until November 25th, 2003. There were a number of subsequent remands because the book of evidence was not ready, and on December 18th, 2003, when the matter came before the District Judge for the seventh time, he struck the case out.
Sixteen months later the appellant was charged again. Alleged excuses for this delay were contained in an affidavit of one of the solicitors in the Chief Prosecution Solicitor's office. The excuses are not impressive," Mr Justice Geoghegan said. The appellant also claimed that, as a result of this delay, fingerprints were taken from him while he was in prison for the purpose of comparing with the fingerprint taken at the scene. Mr Justice Geoghegan did not accept this argument as a justification for preventing the trial.
He did accept Mr Justice OHigginss view that there had been "culpable and unjustified delay on the part of the prosecuting authorities from the time in March 2002 when the file was forwarded to the Director of Public Prosecutions and September 2003 when the prosecution of the applicant was directed".
Mr Justice Geoghegan then considered in detail the prejudicial media coverage. This consisted of a number of articles in the Sunday World, the Sunday Tribune and the Daily Mail, linking the accused with gangland crime and with the murder of Declan Gavin. The coverage led to applications being made to the High Court by Robert Eagar, solicitor for Mr Rattigan, to attach the editors and publishers for contempt. The office of the DPP was also informed of this, with a view to the director himself bringing contempt proceedings. Those initiated by Mr Eagar have yet to come to trial.
DECISION
Mr Justice Geoghegan reiterated the law stated in previous cases that the right to obtain a fair trial takes precedence over any right of the public to have the accused prosecuted. "I do not consider that this principle can be watered down because of the seriousness of the offence as such, he added. "But that does not mean that the seriousness of the offence may not be relevant in assessing the risk. He then considered in detail whether a fair trial had been compromised in this case, looking specifically at the availability of witnesses and the question of the additional fingerprint evidence.
Mr Justice OHiggins had analysed the potential significance of each of five potential witnesses who were now unavailable due to death or departure from the State, and had come to the conclusion that their absence would not materially affect his defence, as they did not provide an alibi for the accused. He took the view that the absence of the five witnesses would not justify prohibiting the trial, and Mr Justice Geoghegan agreed. In addition, the fingerprint evidence taken at the scene was very strong. The alleged delay was not a causal factor in the taking of the fingerprint of the accused.
The appellant had also raised the lack of recording of the interview in Crumlin and Sundrive Road Garda stations. However, Mr Justice Geoghegan agreed with Mr Justice O'Higgins that there was no legal obligation to make such a recording at the time.
Referring to the issue of prejudicial publicity, he said: "A newspaper may be guilty of a flagrant contempt of court on the basis of potentially prejudicing a fair trial and yet it may be inappropriate at the end of the day to stop the trial for any one of a number of reasons but especially if a considerable lapse of time has ensued in the meantime.
"In a very serious murder trial such as this which is likely to last for quite some time in which therefore the jurors will have become fully attuned to the seriousness of their own position and the seriousness of the functions which they have to perform and above all the long period which will have elapsed from the time of the publication of the articles, even the later ones, I do not consider that it would be either appropriate or necessary for this court to grant the injunction sought."
He added: "I find it surprising that the Director of Public Prosecutions, who clearly has an interest by virtue of his office in the fair administration of justice in a criminal trial, had not at least up to the time of the hearing of the appeal embarked on any contempt of court proceedings but left the accused to do so himself.
"It would seem appropriate for the Director of Public Prosecutions to adopt a more pro-active role in the area of contempt of court proceedings where adverse pre-trial publicity is concerned."
Despite this, because of the strength of independent evidence against the accused, and the reasons stated above, he said he was dismissing the appeal.
The full text of this judgment is available on www.courts.ie
Brendan Grehan SC, Siobhán Ní Chulachain BL, instructed by Garrett Sheehan and Co, Dublin, for the appellant; Anthony Collins SC, Paul Anthony McDermott BL, instructed by the Chief Prosecution Solicitor, for the DPP.